Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Guatemala (Ratification: 1952)

A Government representative said that the good will of his Government had been demonstrated through such concrete actions as its welcoming, in May, the direct contacts mission, the mandate of which the Government had requested to be extended to cover this Convention. A report on the May mission was currently being prepared. Other actions had included the submission to the competent authorities of all the Conventions, Recommendations and Protocols that had been mentioned in the Committee's report of the current year. Guatemala thus demonstrated that it was strengthening the rule of law, and, in particular, its labour relations system, with a focus on fundamental labour rights. Progress had been made, and would continue to be made in that regard. With respect to the first observation in the Committee's report, the speaker agreed that the effective respect of human rights and public freedoms was essential to guaranteeing trade union rights. Consequently, the Special Prosecutor for crimes committed against journalists and trade union members, since its establishment, had considered 58 cases, of which: 71 per cent were threats; 0.5 per cent were homicides or murders; and 28.5 per cent were other. Of the total number of cases, three involved threats to the lives of trade unionists. Investigations had been conducted accordingly, the perpetrators had been identified and relevant legal action had been initiated. No cases of homicides or injuries of trade unionists had been reported for that year. The new Government Prosecutor had replaced the Special Prosecutor investigating such cases, with the goal of guaranteeing enhanced effectiveness of the prosecutor's role. The speaker said that efforts were continuing to be made to further strengthen the Office of the Public Prosecutor so as to improve the effectiveness of criminal prosecution, a task that required the technical and financial cooperation of various national and international bodies. As follow-up to actions already taken and in order to prevent conflicts, the Ministry of Labour and Social Security had, for that year, created a system to address the obstacles that had arisen, so as to ensure that trade union rights were protected, with the valuable support of the recent direct contacts mission of the ILO. He said that an integrated approach to inspection needed to be adopted, so as to involve not only verification and prevention of labour conflicts, but enforcement of the law in cases of infringements or violations as well. The new sanctions system enhanced the role of labour inspection. In that framework, various complaints had been received, all of which had been handled, and had either resulted in conciliatory dispute resolutions, or suitable sanctions. From 2001 to February 2004, efforts had been made to ensure that labour rights were respected as effectively as possible. The new sanctions system had thus started to work and had already produced a decline in acts of violence against trade unionists.

With respect to the second observation in the Committee's report, the speaker agreed that labour legislation should have more flexible eligibility requirements for becoming a trade union leader. In that respect, an important technical-legal aspect needed to be pointed out. Since 1991, Guatemala's Constitution had been considered to be inconsistent with the Convention, and a request for its amendment had been made. However, that did not appear to be necessary since the Constitution in fact developed the principle of in dubio pro operario in article 106, one of the objectives and consequences of labour law, whereby the standard that prevailed was the one which was most favourable to workers. With respect to the third observation in the Committee's report, he said that the Government had submitted to tripartite consultation the relevance and content of the possible legal reform initiative, which would enable overcoming current limitations in terms of calculating how many workers constituted a majority for a strike to be declared legal. With respect to the fourth observation in the Committee's report, he said that the provision of article 106 of the Constitution was taken into account in that the standard that prevailed was the one which was most favourable to workers, that is, the one which had fewer restrictions, in line with the new provision of section 243 of the Labour Code. He recalled that, in 2002, the Committee had warmly received the new provision on the prohibition of strikes in essential services. In that regard, two court judgements had been pronounced over the past three years: one declared calling a strike illegal, and the other, of significant historic value, declared calling a strike legal. The Committee of Experts, the Conference Committee and the recent direct contacts mission had been extremely useful and provided valuable guidance. The indulgence of the Committee was requested with respect to the points contained in the report, and the Committee should have faith in the Government's ability to further advance trade union rights. He requested technical cooperation from the ILO and welcomed the financial cooperation of certain countries. Lastly, it was important that the Committee bear in mind that the peace process in Guatemala was under way.

The Worker members thanked the Government representative for the information that he had provided. The Conference Committee had examined the case of violations of this Convention almost systematically since the 1980s. Year after year, the Government invoked the history of this country and the difficulties encountered in establishing a democratic government following a long period of totalitarian rule and armed conflict. In 2003, the Government had still referred to the structural crisis in Guatemala. Yet, the years were passing and the problems persisted. In 2001, following the direct contacts mission, some legislative developments had been noted. Since then, the comments made by the Committee of Experts noted a persistent situation which seriously undermined the provisions of the Convention. In practice, there was no progress to note with respect to the main points raised by the Committee of Experts. With regard to the Constitutional requirement that union leaders should be of Guatemalan origin, it was the union by-laws and not the legislation that should set the criteria for the eligibility of union leaders. In this respect, the Committee of Experts noted from the Government's report that there had been no legislative progress in this field. With regard to the requirement that workers had to be working in the enterprise or the occupation in order to be eligible for trade union office, the Committee of Experts had pointed out that it could be in the interests of unions to have some officers with legal, economic or other experience, without their necessarily working in the occupation in which the trade union operated, but it had not noted any legislative developments on this matter. With respect to the requirement that, in order to call a strike to obtain the agreement of those working in the enterprise, only the votes cast should be taken into account. However, no improvement had been noted in this regard. Finally, with regard to the imposition of compulsory arbitration without the possibility of having recourse to a strike in the public transport and fuel-related services, the Committee of Experts had indicated that these were not essential services in the strict sense of the term. The Government had said that these decrees had been implicitly repealed in part. But, the Committee of Experts rightly insisted that union rights had to be specifically laid out in the legislation.

The Committee of Experts had been making some of these comments since 1989, that is to say, for 25 years. The legal analysis of this case led to the conclusion that the legislation cited for several years had never been changed. In its observation, the Committee of Experts noted that the Government had submitted its comments to the Committee on Tripartite Affairs and that the Labour Code was currently under reform. The Committee of Experts hoped that it would soon be able to note substantial progress on these matters. However, nothing suggested that a change was forthcoming. In fact, for several years, the Committee of Experts had noted a serious deterioration in the situation, which had worsened in 2003 and 2004, particularly in view of the persistence of impunity in the event of murders and acts of violence, and new cases of death threats and intimidation against trade unionists with the complicity, among others, of the judicial authorities. In this respect, the arbitrary detention of Rigoberto Dueñas, Secretary-General of the General Confederation of Workers of Guatemala (CGTG), for over a year was a good example. Mr. Dueñas was accused of corruption in the Guatemalan Social Security Institute although he completely denied any fraud. Several prominent and respectable employers insisted on his innocence. The members of the ILO direct contacts mission, which had taken place in May 2004, had been able to meet Mr. Dueñas and other imprisoned trade unionists. The imprisonment of Mr. Dueñas derived from the performance of his duties as a union representative. The members of the mission had therefore demanded on 19 May 2004 that he be afforded alternative treatment. Moreover, the period of preventive detention went well beyond the minimum sentences handed down for the offences of which he was accused. In Case No. 2241, the Committee on Freedom of Association had demanded the immediate release of the union leader.

Why was freedom of association not respected in law or practice? Why had those who defended workers been the target of so much injustice? Why were there so many denials of justice in the treatment of the cases? What action was being taken by the special unit created in the Public Prosecutor's Office to improve the effectiveness of criminal investigations of cases relating to trade unionists? Why had the agreement between the United Nations and the Government of Guatemala, signed on 7 January 2004 in New York to establish a commission of inquiry on the existence of illegal entities and clandestine security forces, been rejected by the Guatemalan Congress? The governments and administrations of the country had continually raised the issue of separation of the three branches, a principle that could be respected, but which in no way implied that law and justice should not be respected. In democratic societies, independence was the basis for charging and penalizing those who did not respect the legal procedures. However, in the present case, in the light of the punishments imposed upon those who defended workers and the prison sentences imposed on trade unionists, it could only be concluded that no progress had been made.

The Employer members recalled that the Conference Committee had discussed cases relating to violations of freedom of association in Guatemala for the past ten years, either in relation to this Convention or Convention No. 98. They noted that, in the present case, the Committee of Experts had commented on five points, of which three were related to the right to strike, which was not covered by the present Convention. Nevertheless, two of the issues raised by the Committee of Experts did indeed deserve the attention of the Conference Committee. The first of these points concerned serious acts of violence against trade unionists, including cases of murders and death threats, which were entirely unacceptable. According to the Government, a special unit had been established in the Public Prosecutor's Office and had begun operations with a view to improving the effectiveness of investigations into acts of violence and murders of trade unionists. The Government representative had also said that since 2002 there had been no new reported cases of violence or the murder of trade unionists. The Employer members also recalled that the Committee on Freedom of Association had not reported any new cases. They nevertheless shared the deep concern of the trade unions with regard to this situation and recalled that a climate of violence and pressure was not conducive to the exercise to the rights related to freedom of association. They further noted the statement by the Government representative that the special unit had already dealt with 58 cases and that labour inspectors had special orders to investigate cases of violence against trade unionists. However, the Employer members did not believe that they were in conditions to determine whether these measures were adequate in practice.

In recognition of the fact that Guatemala was still suffering the consequences of a long civil war, they endorsed the request by the Committee of Experts for further information on the outcome of the work of the special unit. They also noted the direct contacts mission that had taken place recently and called upon the Government to provide a detailed report relating to the results of the mission. Although the Government had already indicated its willingness to take the appropriate measures to the Conference Committee in 2002, they considered that the Government should once again be called upon to take the necessary measures to eradicate all threats of violence against trade unionists. With regard to the requirement under the Constitution of being of Guatemalan origin in order to be a trade union leader and to be actually working in the enterprise or occupation to be eligible for trade union office, they recalled that this was not in accordance with the Convention. In this regard, they noted the Government representative's statement according to which the Constitution stipulated that, in the event of conflict between two labour law provisions, the most favourable provision to the worker was applicable. However, they wondered whether another more favourable position existed on this particular subject, as they only had knowledge of the provisions contained in the Labour Code, on which the Committee of Experts had based its comments. With regard to the view expressed by the Committee of Experts recognizing that a State might require foreign workers to have resided in a country for a reasonable period before becoming eligible for trade union office, they observed that this was a matter for internal regulation and did not therefore need to be addressed by the legislator. However, the Government could decide to follow the advice provided by the Committee of Experts on this subject and the Government representative had indeed expressed his Government's willingness to do so.

On the subject of the requirement that, in order to call a strike, the workers needed to constitute 50 per cent plus one of those working in the enterprise or industry, the Employer members observed that the Committee of Experts had created its own jurisprudence in this respect. Irrespective of the fact that the Convention did not address the right to strike, they recalled that the issue of the quorum to call a strike was the subject of widely differing regulations in the countries of the world. It was not therefore surprising that the Committee of Experts had not been able to establish a model on this matter which was valid throughout the world. With regard to the question of compulsory arbitration, the Employer members merely wished to recall their well-known position on this matter, particularly in relation to the definition of essential services. In conclusion, the Employer members expressed concern about the first two issues raised by the Committee of Experts and hoped that the new Government would be prepared and able to take further measures in this respect. They also hoped that the Committee would not need to examine this case again in the future, although this would depend on the measures adopted by the Government.

The Worker member of Guatemala affirmed that Guatemala was relapsing into violations of freedom of association. Fifty years after the ratification of the Convention, it was not permitted to set up new trade unions in Guatemala and attempts were being made to eliminate those that existed. He confirmed that there was no state policy designed to respect this right. He indicated that there were countless administrative obstacles to setting up trade unions, and finally when workers who had organized achieved the recognition of a trade union, they were threatened, intimidated, persecuted and dismissed. He referred by way of illustration to the propane gas enterprise that belonged to the TOMZA group as an example of the dismantling of trade unions. He stated that the workers of the maquila industries were the victims of major trade union repression. According to the Labour Code, if a worker was dismissed on trade union grounds he should be reinstated within 24 hours, but that nevertheless there were workers who had been waiting for up to eight years for their cases to be resolved, and when there were judicial decisions in favour of workers, they were not observed, as the general environment was one of total impunity. He indicated that, although the Tripartite Commission on International Labour Affairs existed in application of Convention No. 144, there was still no forum where labour disputes were resolved or where the issue of freedom of association was dealt with, although these measures had already been proposed by the workers. Although the Government liked to mention that it had established the Office of the Public Prosecutor for offences against journalists and trade unionists, this body was merely used to deceive the international community. He expressed concern that penalties were being imposed in cases of labour disputes, as in the case of the María de Lourdes plantation. The courts were not impartial and they did not react to the requests of the workers that their rights be respected, although they did so when it was the employers who were making the accusations. Lastly, he referred to imprisoned trade unionists accused of terrorism and to Mr. Rigoberto Dueñas who, he said, had been imprisoned for a year, accused without any evidence of being involved in social security fraud. He indicated that the ILO direct contacts mission had visited them in prison.

The Employer member of Guatemala expressed the belief that the examination of the case of Guatemala by the Committee was premature, as the report of the direct contacts mission that had recently visited the country had not yet been received. He expressed his concern at the comments of the Committee of Experts in paragraph 1 of the observation, as he considered that facts were given as true and proven when they were only complaints and comments conveyed to the Committee of Experts and the Committee on Freedom of Association. He also expressed concern with regard to the content of paragraph 5 which, in addition to referring to a subject that was not covered by the Convention, namely the right to strike, did so by suggesting that the inexistence of strike action and, what was worse, their declaration as being illegal, could be interpreted as a violation of freedom of association and that this interpretation would be contrary to the spirit and the letter of the Convention. He also considered that some of the comments of the Committee of Experts did not take into account the fact that the legal amendments proposed were faced with obstacles of a constitutional nature or relating to public policy. Furthermore, the subjects under discussion were legally questionable and the Committee of Experts should therefore have assessed in a positive manner the respective tripartite consultations held and the discussions before the Congress of the Republic. He concluded by requesting the Worker members to avoid making use of the ILO's supervisory machinery in order to call into question bilateral commercial agreements concluded by the member States of the Organization, as this could only prejudice the credibility of these mechanisms.

An observer representing the Latin American Central of Workers (CLAT) recalled that Mr. Rigoberto Dueñas, the workers' representative at the Guatemalan Social Security Institute, had now been in detention for a year for having denounced the corruption in that organization and that, despite the fact that the offences of which he was accused were not penalized by sentences of imprisonment, he was still under detention. He indicated that the ILO mission that had taken place some days previously had been able to visit the detainee and had collected numerous statements from various quarters claiming that Mr. Dueñas was innocent. He added that the fact that a new Government had just taken office could not be used to justify the unjust detention of workers' representatives and the high level of impunity prevailing in Guatemala. He added that since 1992 his trade union organization had suffered the murders of more than 15 of its officials and that no proceedings had been initiated in respect of these cases and no charges had been brought. At the end of February 2004, some 33 officials from the transport sector had been imprisoned for demonstrating against a decision by the Government of the City of Guatemala, and they had been accused of committing terrorist acts. He concluded by saying that, during the sad years of civil war in Guatemala, when many sectors backed violence as a way of overcoming violence, the trade union organizations promoted COCEPAZ, which had collaborated in bringing peace back to the country.

The Government member of Norway, also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, noted with great concern the many murders, acts of violence, death threats and intimidations against trade unionists in Guatemala. He welcomed the indication by the Government that a special unit had been established in the Public Prosecutor's Office and had begun operations to improve the efficiency of criminal investigations into acts of violence. He requested the Government to provide information on the activities of this unit in order to assess any improvements in the situation concerning impunity enjoyed by those perpetrating anti-trade union acts. He also welcomed the positive information provided by the Government representative. He expressed the firm hope that the Government would take immediate action to ensure that human rights and fundamental freedoms, which were essential to the exercise of trade union rights, were effectively observed. He noted with particular interest that the Government had requested technical assistance from the ILO and welcomed the visit to the country by the direct contacts mission in May 2004 in relation to Convention No. 98, which was a positive step forward. However, he emphasized the gravity of the situation and pointed out that trade union rights could only be exercised in a climate that was free from violence and pressure. Finally, he hoped that in the near future it would be possible to note that significant progress had been achieved in practice in these areas and stated that the Government's intervention had given confidence of their good intentions.

An observer representing the World Confederation of Labour (WCL) considered that, despite the fact that it was 52 years since Guatemala had ratified the Convention, successive governments had implemented policies and strategies of extermination, repression, persecution, imprisonment and the murder of trade union officials. He indicated that 30 workers had been detained, as confirmed by the ILO direct contacts missions of 2001 and 2004. Those cases demonstrated the impunity and precarious application of justice, and even judicial officials recognized that corruption was the most serious problem facing the judicial authorities. He recalled that it was a year since the detention of the assistant general secretary of the CGTG, Mr. Rigoberto Dueñas, and indicated that several public officials recognized that Mr. Dueñas was no more than a scapegoat. The direct contacts mission had consulted the trade union movement and the employers, which had both confirmed that the detention of Mr. Dueñas was unjust and that in the judicial proceedings against him due process had been infringed, and that it was probably for this reason that the direct contacts mission had requested an alternative to imprisonment for him. He considered that Guatemala was once again at fault with the Committee of Experts and the ILO itself. Successive governments had not had, and still did not have, the political will to protect and respect trade union rights and freedoms. He added that, during the 36 years of civil war, organized trade unionists constituted a mere 5 per cent of the economically active population, while during the 18 years of formal democracy this percentage had fallen to 2.5 per cent. He concluded that dozens of rural trade unions had been destroyed and thousands of workers dismissed, including rural workers, those in the maquila industry and in multinational enterprises, where unionized workers had been waiting for two years since their dismissal without being reinstated in their jobs.

The Worker member of France reiterated, with reference to the comment made by the Employer member of Guatemala, that his country had no interest in the bilateral trade agreements and economic questions that were often raised. For a number of years, Guatemala had constituted a case of continuous and serious violation of this Convention. The situation prevailing in the country was a matter of extreme concern, especially with regard to basic human rights and labour law in particular. The Committee of Experts had also commented on violations relating to the application of Conventions Nos. 29, 100, 111 and 144. This illustrated the situation of workers, which necessarily impinged upon freedom of association. In its observation, the Committee of Experts referred to a significant number of murders, acts of violence, death threats and intimidation against trade unionists, which reflected a general situation of non-compliance with human rights and public freedoms, which were essential for the effective exercise of trade union rights. With respect to the decrees imposing compulsory arbitration without the possibility of having recourse to a strike in many sectors, the Government had indicated in its report that the decrees criticized by the Committee of Experts had been implicitly repealed in part. He called upon the Government to explain this new form of explanation in a much more comprehensible manner. He wondered whether those decrees had been effectively repealed and whether the right to organize specified in the United Nations Covenant on Civil, Political and Social Rights needed to be recalled yet again. The exercise of this right allowed trade unionists to organize their activities. In conclusion, the case of Guatemala constituted a serious case of violation of civil and political freedoms and jeopardized freedom of association. The new Government bore a heavy burden if it wished to achieve observance of basic rights at work, thereby giving effect to the direct contacts mission. It was to be hoped that the good will demonstrated by the Government would be translated into practice and that the measures mentioned would be given effect.

The Worker member of Norway recalled that the case of Guatemala had been discussed for many years and that each year the Government had asked for time to resolve the discrepancies with Conventions Nos. 87 and 98. Yet the workers in Guatemala continued to be the victims of flagrant violations of labour rights, including the right to strike. She welcomed the recent visit to the country by a direct contacts mission and looked forward to hearing the concrete measures proposed. The violations in question included the dismissal of workers because of union activities in both the public and private sectors, including cases in the Ministry of Health and Social Security, the Eskimo plantation in Port Quetzal and the banana firm COBSA. The Government had argued that all cases had been resolved through judicial proceedings, but in practice this merely meant that the claims by workers for reinstatement had been rejected by the courts. The violations of labour rights in the banana sector were well known. On the La Inca plantation, 600 workers had been dismissed under the pretext of lack of productivity, despite the fact that labour inspectors had confirmed that production was absolutely satisfactory. As in many other cases, private security forces had been used to intimidate the workers. Banana production was now being moved to the south coast, where the workers were not organized. The situation in free trade zones in the maquila industry was also well known. Organized workers were dismissed as soon as a trade union was established, which was in violation of the ILO's Conventions and Guatemala's labour laws.

Despite the firm hope expressed by the Committee of Experts that the Government would take prompt action to ensure that fundamental trade union rights were protected, the opposite was actually occurring. With regard to the right to strike, the Committee of Experts had clearly stated that the Government should amend section 241 of its Labour Code, respecting the required number of workers at a workplace to be able to call a strike. In her view it was astonishing that such a violation of the Convention still existed. She also shared the concerns of the Committee of Experts regarding the prohibition of sympathy strikes, the imposition of compulsory arbitration when a strike might occur in the public sector and the declaration of public services as essential, when they clearly were not according to the criteria of the ILO. She emphasized that there had been too many examples of the Government promising to amend labour laws and then failing to do so, while the harassment of workers continued in both the private and public sectors. She therefore called for the Government to assume its responsibility to change the situation and warned that a tripartite system would never function unless the Government changed the labour laws, respected the right to strike and stopped the violations of trade union rights.

The Worker member of Nicaragua expressed his profound concern at the violation of the right to freedom of association and at the related government repression. He confirmed that the current trend was becoming very dangerous, as labour disputes were being treated as criminal offences and penal proceedings were being brought against workers following pressure by governments and employers, including pressure to reform criminal and procedural codes for this purpose. An example was Guatemala, where there were cases of trade union officials belonging to the CGTG who were being accused of terrorist activities in the dispute in the transport sector. This had occurred previously in the banana sector and also in his own country, where he maintained that he had been the victim of repression by so-called "democratic" governments. Persecution was taking place in the export processing zones (EPZs) where there were "blacklists" to prevent workers from becoming organized and establishing trade unions. He endorsed the appeal to free the trade unionists being held prisoner in Guatemala. To conclude, he affirmed that the people of the region were becoming aware of the need to fight for their economic, social and labour rights and affirmed that in this struggle they would surely be supported by the ILO and the international community.

The Worker member of the United States noted that a new Government had been recently elected in Guatemala and he wished the Berger administration every success. However, the election of a new president was not a convincing reason for having accepted and received the ILO direct contacts mission only a couple of weeks before this year's Conference. Moreover, the fact that it was an election year in 2003 did not excuse the lack of progress in Guatemala regarding Conventions Nos. 87 and 98 since the 2002 and 2003 Conferences. In spite of the complaints heard from the Employers and Governments about the presence of Central American countries on this year's list, one should not be surprised that Guatemala was among them. As the Conference Committee had observed over the last 20 years, there were critical and chronic violations of Conventions Nos. 87 and 98. Between 1994 and 2002, the ILO's Committee on Freedom of Association examined 21 Guatemalan cases, nine involving trade unionists as targets of assassinations, disappearances, assaults and death threats, and 12 concerning anti-union dismissals. The Committee of Experts' report in 2004 accurately referred to several examples of how Guatemalan law violated the Convention. He regretted that conventional wisdom continued to circulate, without foundation, that Guatemala's compliance with the Convention substantially improved with the 2001 labour law reforms. The right to strike during the harvest in the rural sector was undermined by section 243 of the Labour Code which gave the Executive the power to prescribe work stoppages that affected economic activities essential to Guatemala. The reform of section 216 required signed and written proof from 20 or more workers to form a union and thereby created a list of pro-union activists susceptible to employer reprisals and imposed a literacy requirement. The law continued to impose a threshold of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. In sectors with thousands of workers, such as agriculture, this was prohibitive. The revision of section 233 violated the Convention by increasing the requirement from two to four unions to form a federation, and from two to four federations to form a confederation. The reform of section 379 imposed liability on individual workers for legal damages resulting from a strike or other collective action and created a chilling effect on the exercise of freedom of association rights.

As noted by the United States State Department in its 2004 Human Rights Report, by the United Nations Verification Mission in Guatemala in its 2001 report and by the Committee on Freedom of Association in paragraph 91 of its November 2001 report, an ineffective labour court, labour inspectorate and enforcement regime fostered an environment of anti-union reprisals and dismissals. The United States State Department report found that, although the Labour Code provided that workers dismissed illegally for exercising union activities should be reinstated within 24 hours, in practice, employers filed a series of appeals or simply defied judicial orders for reinstatement. It should not be a surprise that, according to the Guatemalan Labour Ministry's own statistics, only about 2.3 per cent of the workforce were in registered unions. Nor was it a surprise that, given the labour law regime and labour relations climate, there was a total of two collective bargaining agreements covering only 1,300 workers in the EPZs which employed more than 125,000 workers. Even if all of the de jure violations of the Convention were corrected, there was still the disturbing, current climate of assassinations and death threats directed against trade unionists and impunity for the perpetrators. In 2002, the Inter-American Commission on Human Rights ruled that article 16 of the American Convention on Human Rights, which guaranteed freedom of association, was violated by Guatemala when Government agents, in collaboration with the owners of the plantation "La Exacta" killed three unionists and wounded 11 others. He reminded the Government representative that there had been active death threats directed against trade unionists since 2002, including those who were advocating the innocence of jailed union leader, Rigoberto Dueñas. With respect to the United States Central-American Free Trade Agreement, it only required governments to comply with their national labour laws and did not require any prior harmonization in law or practice with the fundamental ILO Conventions. He asked that the Conference Committee took the strongest and most effective measures in this case since there was much at stake, including the lives of Guatemalan workers.

The Government member of Costa Rica stated that she hoped that the efforts made by the new Government to promote fundamental human rights would be taken into account. She urged the Committee to acknowledge the efforts made by the Government to protect trade unionists and to penalize those who violated their rights. She hoped that the fact would be taken into account that Guatemala was recovering from a situation of war which it had experienced during the previous decade and that it needed time for reconstruction.

The Government representative declared that he had taken due note of the comments made and stated that, in the first place, he wished to refer to the aspects that were related to the observation of the Committee of Experts. He hoped that the documentation provided would shed light on the efforts made to combat the persecution of trade unionists. He indicated that the climate of violence had changed. Some speakers appeared to think that nothing had changed. He called upon them to look at the present from a forward-looking perspective. He maintained that the establishment of the special unit had not been done as a pretext, but was an expression of the will to resolve the problems and to take into account the points raised by the Conference Committee. He said that fundamentally many of the interventions had referred to the past and, even though many things could have been done in a different way in the past, what was important was to see what had been done and what was being done this year. However, he was not trying to say that what had been done was sufficient, as the social situation always required something more. But, he wanted it to be seen that measures were being taken against anti-union activities.

In the second place, he indicated that he wished to refer to matters that were not related to the observation of the Committee of Experts and the cases of the Committee on Freedom of Association, namely the situation of Rigoberto Dueñas and Victoriano Zacarías. He said that Rigoberto Dueñas was facing trial for a common law crime, namely for social security fraud for a very high amount. He had not been detained as a trade unionist, but as a member of the Executive Board of the institution, alongside other persons not related to the trade union, but, for example, to the university. He recalled that corruption was a problem of absolute priority at the national level. He added that he had heard that Rigoberto Dueñas was being treated as a delinquent. He denied that this was the case and said that the accused benefited from full guarantees, as his case had not yet been tried, and enjoyed the presumption of innocence. His detention had been described as arbitrary, but he said an arbitrary detention in his view occurred only when it was not the outcome of a judicial order, and that in the present case an order had been issued by the competent judge. In his view, a case was being raised that bore no relation to the Convention, and it was being said that this case demonstrated anti-union attitudes and that labour disputes were being penalized, the case was being used to call into question the whole system. In his opinion, these allegations were extremely grave. He wondered whether they constituted an attempt to influence the decisions of the judges and to manipulate public opinion. The present Government had succeeded in raising the level of trust in the judicial system. It was therefore very serious to claim that there had been new cases of murders and that strikes were prohibited during harvest times, as this measure had been amended in 2001, as could be seen in the updated Labour Code. In conclusion, he called upon the Committee to strengthen the machinery for the application of international labour standards and declared that in future sessions he hoped to be able to demonstrate the progress made in his country with the collaboration of the ILO.

The Worker members said that there had been no progress in relation to the legislation in Guatemala for many years. The fulfilment of the commitments undertaken by the Government during the direct contacts missions and the tripartite meeting held on 20 May 2004 was still awaited. As indicated by the comments made by the Committee of Experts and the large number of cases dealt with recently by the Committee on Freedom of Association, the situation had deteriorated in practice, as noted by the members of the direct contacts mission. With regard to the case of Mr. Rigoberto Dueñas, a leader of the CGTG, his immediate release was called for, in accordance with the conclusions of Case No. 2241 of the Committee on Freedom of Association. The Worker members contested the statements made by the Government representative on the case of Mr. Dueñas. The arguments put forward were unacceptable and contradicted the findings of the direct contacts mission and the conclusions of the Committee on Freedom of Association. The Government of Guatemala had frequently requested technical assistance from the ILO. The Worker members evidently supported the assistance that could be offered by the ILO to a country to bring its law and practice into conformity with Conventions. In the present case, however, political will was needed, and particularly the will to establish the rule of law and respect for trade union rights. Urgent action was needed. The Worker members therefore called for the Committee's conclusions to be placed in a special paragraph of its report.

The Employer members noted that frequent reference had been made during the discussion to specific cases of individuals about which the Committee knew very little and which were not covered by the report of the Committee of Experts. This placed the Conference Committee in a dilemma, as it moved the discussion away from its traditional basis, which was the report of the Committee of Experts, on which the Worker members in particular often relied in their interventions. In such discussions, the danger arose from the fact that the only source of the information provided was the oral interventions of the members of the Committee. They recalled that this Committee was not a criminal or legal body with competence to establish whether or not alleged facts were true, even though the members of the Committee evidently benefited from the right to free speech. In conclusion, they called upon the Government to continue to strengthen the efforts that were being made to address the problems arising in relation to the application of the Convention and to provide a detailed report on the measures adopted.

The Committee noted the information provided orally by the Government representative and the discussion that followed. The Committee noted with concern that the pending problems related to acts of violence against trade unionists and various obstacles to the freedom of workers' organizations to undertake their activities. The Committee also noted that the Committee on Freedom of Association had examined a significant number of cases raising issues concerning the application of the Convention. The Committee noted that in May 2004 a direct contacts mission had visited the country; it also noted a number of commitments made by the Government during the mission. The Committee noted the measures indicated by the Government to ensure the security of trade unionists and to punish violations of trade union rights. The Committee noted that the Government had submitted the remaining problems relating to the application of the Convention to the Tripartite National Commission with a view to carrying out the necessary legal reforms as soon as possible. The Committee recalled that respect for civil liberties was essential for the exercise of trade union rights. In this respect, the Worker members had referred to the specific case of Mr. Rigoberto Dueñas, who was held under preventive detention. The Committee requested the Government, in consultation with the social partners, to take the necessary measures without delay in both law and practice to guarantee the full application of the Convention, with special reference to the pending problems concerning acts of violence against trade unionists. The Committee hoped that in the near future it would be able to note substantial progress in practice with regard to the various points raised, and requested the Government to provide a report to the Committee of Experts on all the remaining issues so that it could examine the report together with that of the recent direct contacts mission.